The Supreme Court’s Commonsense Ruling on the Atlantic Coast Pipeline

From court room antics to vigilante protests, anti-fossil fuel activists have made it clear they are willing to do whatever it takes to stop the construction of much-needed energy infrastructure projects. The latest ploy in the anti-energy playbook? Arguing pipelines cannot cross the Appalachian Trail, a 2,200 mile hiking path that spans from Maine to Georgia.

While activists have continued to adapt their strategy in an effort to develop new hurdles to infrastructure development, the Supreme Court yesterday ruled this one was just too far off from fact and commonsense. The Court overturned a lower court’s ruling that would have blocked construction of the $8 billion Atlantic Coast natural gas pipeline – determining the U.S. Forest Service has the authority to grant the pipeline a right of way under the trail in the George Washington National Forest in Virginia.

The Wall Street Journal Editorial Board called it a “victory for common sense” and “a defeat for those who want to shut down U.S. energy production,” noting:

The U.S. Forest Service approved the plan, but climate activists sued. They argued that because the Appalachian Trail is administered by the National Park Service, it counts as Park System lands. If so, then no federal agency would have the authority to permit the pipeline crossing. An appellate court accepted this theory in a ruling that—no kidding—quoted “The Lorax,” a children’s book by Dr. Seuss.

Justice Clarence Thomas made short work of the argument in U.S. Forest Service v. Cowpasture River Preservation Association. “If a rancher granted a neighbor an easement across his land for a horse trail,” he wrote, nobody would think “that the rancher had ceded his own right to use his land in other ways, including by running a water line underneath the trail.” The same principle applies when the Forest Service grants a “right-of-way” under the Trails Act of 1968.

The land is still maintained by the Forest Service, as the government’s advocate explained during oral argument: “If a tree falls on forest lands over the trail, it’s the Forest Service that’s responsible for it. You don’t call the nine Park Service employees at Harpers Ferry and ask them to come out and fix the tree.”

The theory that pipelines can’t pass the Appalachian Trail, Justice Thomas wrote, “would apply equally to all 21 national historic and national scenic trails currently administered by the National Park Service.” Where a trail traverses state or private properties, those might also be considered “lands in the National Park System.” The facts, Justice Thomas concluded, “simply cannot bear the weight” of the Lorax interpretation.

GAIN spokesman Craig Stevens released a statement yesterday in support of the ruling:

“The Supreme Court’s ruling is a key win for the Atlantic Coast Pipeline and energy infrastructure development across the nation. While activist challenges to permitted energy infrastructure attempt to delay construction of critical pipelines and bog down the courts, today’s ruling sends a reassuring message that facts and commonsense will ultimately prevail. Policymakers, regulators, and the legal system have a duty to ensure regulatory certainty for infrastructure developers who meet the necessary permitting and safety standards.  Today’s decision is a significant step in the right direction and we look forward to the completion of Atlantic Coast and its important role in bolstering our nation’s energy security.”

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